Unjustified vs. Justified Absences: When Can Salary Be Deducted and Disciplinary Proceedings Initiated?

“An absence is deemed to occur when the employee is not present at the place where they should perform their activity during normal daily working hours.” This definition, set out in Article 248 of the Labour Code, is clear.
Even so, the regime governing absences remains a frequent source of conflict between employees and employers.

This article examines:

• The difference between justified and unjustified absences

• When salary deductions may occur

• In which situations disciplinary proceedings may be initiated

1. Difference Between Justified and Unjustified Absences

The Labour Code establishes two categories of absences: justified and unjustified.

What Are Justified Absences?

The legislator provides a closed list of reasons that allow an absence to be considered justified. Therefore, any justification that is not provided for by law must lead to the corresponding absence being considered unjustified.

For an absence to be deemed justified, the employee must provide adequate evidence in due time.

Legal Deadlines for Submitting Proof

• Foreseeable absence: the employee must justify it 5 days in advance

• Unforeseeable absence: the employee must notify as soon as possible

• Employer: has 15 days to request proof of the justification if it was not submitted immediately

The rules regarding the qualification of absences and their grounds cannot be overridden by collective bargaining instruments (e.g., Collective Agreements) nor, a fortiori, by an employment contract.
Thus, the parties have no contractual freedom to define which reasons may or may not justify an absence, nor to set the number of permitted absences for each ground.

The legal definition of justified reasons is therefore mandatory.

2. Salary Deduction for Absences: When Is It Allowed?

Loss of remuneration does not depend solely on whether an absence is classified as justified or unjustified. There are justified absences that still result in salary loss.

Justified Absences That Imply Loss of Remuneration

The most common example is absences due to illness when the employee is covered by a social protection scheme.
Article 255(2)(a) of the Labour Code states that justified absences due to illness lead to loss of remuneration if the employee benefits from a sickness protection regime within Social Security.

In such cases, payment is ensured by Social Security through the sickness allowance.

When the Employer Must Pay Even in Case of Illness

If the employee is unable to receive sickness benefits due to the employer’s fault—such as failure to declare the employment relationship or failure to make the mandatory social security contributions—then the employer remains obliged to pay the employee’s remuneration, even without the provision of actual work.

Relevance of the Distinction for Disciplinary Purposes

The classification of an absence as justified or unjustified affects:

• Length of service

• Disciplinary regime

• Other labour rights

But it does not, on its own, determine the right to remuneration.

3. Unjustified Absences and Disciplinary Proceedings: When Can They Lead to Sanctions?

Unjustified absences have particular legal relevance because they constitute a breach of the duty of attendance.

Immediate Consequences of Unjustified Absences

Each unjustified absence results in:

• Loss of the corresponding remuneration

• Non-counting for length of service

• Possible initiation of disciplinary proceedings

Possible Disciplinary Sanctions

Any sanction must be proportionate to the seriousness of the conduct. Possible consequences include:

• Reprimand

• Fine or intermediate sanctions (depending on internal rules)

• Dismissal with just cause, in serious cases

When Can Unjustified Absences Lead to Dismissal?

The law provides that the following may constitute just cause for dismissal:

• Absences that cause serious harm or risk to the company; OR

• Five consecutive unjustified absences

• Ten unjustified absences, interpolated, within the same calendar year

In such cases, the employer may initiate disciplinary proceedings which, following the legally required steps, may result in dismissal with just cause.

How to Manage the Absence Regime Safely?

Justified and unjustified absences have different impacts on:

• Remuneration

• Labour rights

• Exercise of disciplinary power

Correctly classifying absences and complying with legal deadlines is essential to avoid disputes and ensure that both employer and employee act within the legal framework.

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